Jewell v. Grand Trunk Railway

• Decision Date: 18 December 1874
• Citation: 55 N.H. 84
• Parties: Jewell v. Grand Trunk Railway.
• Court: New Hampshire Supreme Court

55 N.H. 84

Jewell v. Grand Trunk Railway.

Supreme Court of New Hampshire

December 18, 1874

Common carriers are bound to deliver freight, consigned to them for transportation, at a place suitable and reasonable for the consignee to receive it; and whether any given place answers this requirement is a question for the jury, under proper instructions from the court.

The rule would be the same if their liability as common carriers had ended, and the goods remained in their possession as warehousemen or depositaries.

The liability of a master for the negligence of his servant extends only to such acts or omissions as come within the scope of the servant's employment. Therefore, where the servant of a railway corporation, not having authority from the corporation to employ other servants, engaged one G. to assist him in moving a crate of crockery, and, through the negligence or inefficiency of G., combined with the carelessness of the servant, the crate was overturned striking the plaintiff, whereby it was claimed he suffered a severe injury---Held, that the corporation was not liable for the negligence of G., nor for the fault of their servant in employing G. to assist him, even admitting G. to have been an unsuitable and improper person to engage for that service.

If the consignee of goods accepts a delivery at a place or in a manner different from what a common carrier is liable by law to deliver them, the business of removing them becomes from that time his business, and the carrier cannot be held liable for the acts or omissions of those employed to do the work.

When the duty of a common carrier as to the delivery of freight has ended, no custom or practice of his servant in assisting consignees in moving or loading their goods can affect the principal

CASE commenced in the lifetime of Levi D. Jewell, who died before the trial, to recover damages for a personal injury to the deceased alleged to have been caused by the carelessness and neglect of Thomas Monneghan, an employ‚ of the defendants, in wheeling out and placing

upon the platform of the defendant's freight-house, at Gorham N. H., a crate of crockery belonging to C. L. Plaisted, of Jefferson. Plea, the general issue.

The plaintiff, who is the widow of the deceased, and was his wife at the time of the injury, was offered as a witness by her counsel. The defendants objected to her testifying on the ground of incompetency, but the court allowed her to testify to which the defendants excepted. The court was of the opinion (and so stated) that her examination would not (and it did not) lead to any violation of marital confidence.

It appeared that on November 24, 1869, the deceased was in the employ of Mr. Thompson, of the Glen house, who sent him on that day with a four-horse team to the defendants' depot, at Gorham, to obtain some freight. When he arrived at the freight-house, he found the team of Mr. Plaisted backed up to the platform at a point nearly opposite the freight-house door, and two men in Plaisted's employ were there. Said Jewell backed his team up to the platform from four to six feet to the right of Plaisted's team, and, upon his freight being pointed out to him by said Monneghan, he took it and loaded it into his wagon. Plaisted's freight consisted of said crate of crockery weighing 620 lbs., and several smaller articles, which Monneghan had pointed out to his men (Otis A. Garland and John Nutter) inside the freight-house, and which, with the exception of the crate, they had taken and loaded. Garland requested Monneghan to assist in wheeling the crate to the platform. He did so, using a pair of low warehouse trucks, Monneghan wheeling the trucks and Garland steadying the crate as it moved along. In unloading it from the trucks on the platform, the crate tipped over, and one corner of it hit Jewell on his right shoulder and injured him. Said Jewell was then standing upon the ground between the platform and the hind end of his wagon adjusting the tail-board, the space between being just wide enough for him to stand in. The platform was about eight feet, as well as Jewell stood on the ground it was nearly as high as his shoulders. The bottom of his wagon was about on a level with the platform. The crate was about 4 1/2 feet long, 3 feet wide, and 2 or 2 1/2 feet thick, and was loaded lengthwise upon the trucks, and, in unloading it, it was necessary to set it upon the end. In so doing Garland attempted to hold it, but in consequence of the carelessness of Monneghan in depositing it upon the platform, or of the inefficiency of Garland in holding it, or for both of these reasons, it went over, hitting Jewell as before stated, and leaving about 4 inches of the crate projecting beyond the edge of the platform. Plaisted's freight arrived at Gorham depot the preceding day, and was taken out of the cars and set apart for him, or placed for safe-keeping in the defendants' freight-house, about 30 feet from where his wagon stood at the time of the injury, and about 18 feet from the door, and remained there until it was pointed out to his men by Monneghan. It did not appear that any goods or other obstruction was between Plaisted's freight and the place where his wagon stood. Monnegham was employed as porter for the defendants about the station at Gorham, and

had been for many years. His duty in regard to freight was to unload it from the cars, put it in some convenient place inside the freighthouse, keeping each man's freight by itself, and when called for to point it out to the consignee and deliver it, so far as the defendants were bound in law to deliver it, either at that point or upon the platform outside or elsewhere. Thomas H. Cooper, the defendants' superintendent, testified that it was no part of Monneghan's duty or service for the defendants to deliver freight upon the platform, or to load it for the consignees, but he did not deny that it was Monneghan's duty to do whatever it was incumbent on the defendants to do in the matter of delivering freight at Gorham.

The plaintiff's evidence tended to show that it was the ordinary custom of Monneghan to move heavy articles like this crate of crockery from inside the freight-house to the platform when they were called for, and deliver them there; but the defendants' evidence tended to show that, at the request of the consignees, when not otherwise engaged, he had occasionally assisted in moving such articles. The plaintiff did not claim that the defendants were bound to furnish assistance in loading this crate upon Mr. Plaisted's team.

Upon the question of liability, the defendants' counsel requested the court to instruct the jury,---

1. That if Plaisted's freight was received at the Gorham depot, unloaded, and carefully set aside in the defendants' warehouse, in a place reasonably accessible to the owner when called for, and the same was pointed out to him when called for, the defendants' duty as to making delivery of the same, or of forwarding it further, was at an end; that the defendants were under no legal obligation to deliver it upon the platform outside of their warehouse, or to load it upon the consignee's wagon, and cannot be held liable for Monneghan's acts in wheeling out the crate of crockery to the platform after pointing it out as aforesaid, as this would be no service the defendants had contracted or were bound to do for Plaisted; that in doing this service, Monneghan would not be the servant of the defendants.

2. That in order to hold the defendants liable, the jury must find that Monneghan was their servant, and, in performing the act of wheeling the crate of crockery to the platform, was acting within the scope of his employment as such servant, and that his carelessness as such servant in wheeling or in unloading said crate caused it to tip over and injure the deceased.

3. That the defendants are not liable for any negligence or carelessness of said Garland; that he was not the servant of the defendants, and they are in no respect liable for his acts.

4. That even if the defendants were bound as a matter of law to deliver Plaisted's freight on the platform, still, he or his teamster might, if he chose, receive the delivery of it, inside the freight-house; that the testimony of Garland and Monneghan is competent evidence from which the jury may find that the Plaisted freight was in fact delivered and accepted in the freight-house; and if it was thus deliv-

ered and accepted, then the question whether or not the defendants were bound to deliver it on the platform or elsewhere does not arise in the case, and the jury need not consider that matter at all; and in such case, Monneghan's act in wheeling out and assisting in unloading the crate would be his own voluntary matter, the defendants not being responsible even if he was careless in doing it.

The court did not give these instructions, except as is hereinafter stated.

The court instructed the jury, that in order to maintain this action the plaintiff must prove that the injury was occasioned by the negligence of Monneghan; that, as the writ did not allege that the defendants were liable on account of any negligence of Garland, they could not be held by reason of any unskilfulness of Garland in steadying or holding the crate,---but that if Monneghan, in wheeling out the crate was doing a service which it was incumbent on the defendants to do, and he was guilty of negligence in selecting or allowing Garland to assist, instead of securing the service of a fitter assistant, then the defendants might be held liable for the carelessness of Garland in not properly steadying or holding the crate, although Monneghan performed his part of the work skilfully; that, if the unskilfulness in doing the work was none of it...